Contract
60 (2002) Nr. 1
TRAC T A TENBLAD
VAN HET
K O N I N K R I J K D E R N E D E R L A N D E N
JAARGANG 2003 Nr. 21
A. TITEL
Verdrag inzake de bevordering en de wederzijdse bescherming van investeringen tussen het Koninkrijk der Nederlanden en de Republiek Namibië;
Windhoek, 26 november 2002
B. TEKST
Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Republic of Namibia
The Kingdom of the Netherlands and
the Republic of Namibia,
hereinafter referred to as the Contracting Parties,
Desiring to strengthen their traditional ties of friendship and to extend and intensify the economic relations between them, particularly with respect to investments by the nationals of one Contracting Party in the territory of the other Contracting Party,
Recognising that agreement upon the treatment to be accorded to such investments will stimulate the flow of capital and technology and the economic development of the Contracting Parties and that fair and equi- table treatment of investments is desirable,
Considering that a stable framework for international investments will promote effective utilisation of economic resources and improve living standards,
Recognising that the development of economic and business ties will promote internationally accepted labour standards,
Considering that these objectives can be achieved without compro- mising health, safety and environmental measures of general application,
Have agreed as follows:
Article 1
For the purposes of this Agreement:
a) the term ‘‘investments’’ means every kind of asset and more par- ticularly, though not exclusively:
(i) movable and immovable property as well as any other rights in rem in respect of every kind of asset;
(ii) rights derived from shares, bonds and other kinds of interests in companies and joint ventures;
(iii) claims to money, to other assets or to any performance having an economic value and being related to an investment;
(iv) rights in the field of intellectual property, technical processes, goodwill and know-how;
(v) rights granted under public law or under contract, including rights to prospect, explore, extract and win natural resources.
b) the term ‘‘nationals’’ shall comprise with regard to either Contract- ing Party:
(i) natural persons having the nationality of that Contracting Party;
(ii) legal persons constituted under the law of that Contracting Party and being domiciled in the territory of that Contracting Party;
(iii) legal persons not constituted under the law of that Contracting Party but controlled, directly or indirectly, by natural persons as defined in (i) or by legal persons as defined in (ii).
c) the term ‘‘territory’’ includes any area adjacent to the territorial sea which, under the laws of the State concerned, and in accordance with international law, is the exclusive economic zone or continental shelf of the State concerned, in which it exercises jurisdiction or sovereign rights.
Article 2
Either Contracting Party shall, within the framework of its laws and regulations, promote economic cooperation through the protection in its territory of investments of nationals of the other Contracting Party. Sub- ject to its right to exercise powers conferred by its laws or regulations, each Contracting Party shall admit such investments.
Article 3
1. Each Contracting Party shall ensure fair and equitable treatment of the investments of nationals of the other Contracting Party and shall not impair, by unreasonable or discriminatory measures, the operation, man- agement, maintenance, use, enjoyment or disposal thereof by those nationals. Each Contracting Party shall accord to such investments non- discriminatory security and protection.
2. More particularly, each Contracting Party shall accord to such investments treatment which in any case shall not be less favourable than that accorded either to investments of its own nationals or to invest- ments of nationals of any third State, whichever is more favourable to the national concerned.
3. If a Contracting Party accords special advantages to nationals of any third State by virtue of agreements establishing customs unions, eco- nomic unions, monetary unions or similar institutions, or on the basis of interim agreements leading to such unions or institutions, that Contract- ing Party shall not be obliged to accord such advantages to nationals of the other Contracting Party.
4. Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals of the other Con- tracting Party.
5. If the provisions of law of either Contracting Party or obligations under international law existing at present or established hereafter be- tween the Contracting Parties in addition to the present Agreement con- tain a regulation, whether general or specific, entitling investments by nationals of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such regulation shall, to the extent that it is more favourable, prevail over the present Agreement.
Article 4
With respect to taxes, fees, charges and to fiscal deductions and exemptions, each Contracting Party shall accord to nationals of the other Contracting Party who are engaged in any economic activity in its ter- ritory, treatment not less favourable than that accorded to its own nation- als or to those of any third State who are in the same circumstances, whichever is more favourable to the nationals concerned. For this pur- pose, however, there shall not be taken into account any special fiscal advantages accorded by that Party:
a) under an agreement for the avoidance of double taxation; or
b) by virtue of its participation in a customs union, economic union or similar institution; or
c) on the basis of reciprocity with a third State.
Article 5
The Contracting Parties shall guarantee that payments relating to an investment may be transferred. The transfers shall be made in a freely convertible currency, without restriction or delay. Such transfers include in particular though not exclusively:
a) profits, interests, dividends and other current income;
b) funds necessary
(i) for the acquisition of raw or auxiliary materials, semi-fabricated or finished products, or
(ii) to replace capital assets in order to safeguard the continuity of an investment;
c) additional funds necessary for the development of an investment;
d) funds in repayment of loans;
e) royalties or fees;
f) unspent earnings of natural persons contracted in connection with an investment;
g) the proceeds of sale or liquidation of the investment;
h) payments arising under Article 7.
Article 6
Neither Contracting Party shall take any measures depriving, directly or indirectly, nationals of the other Contracting Party of their invest- ments unless the following conditions are complied with:
a) the measures are taken in the public interest and under due proc- ess of law;
b) the measures are not discriminatory or contrary to any undertak- ing which the Contracting Party which takes such measures may have given;
c) the measures are taken against just compensation. Such compen- sation shall represent the fair market value of the investments affected, shall include interest at a normal commercial rate until the date of pay- ment and shall, in order to be effective for the claimants, be paid and made transferable, without delay, to the country designated by the claim- ants concerned and in the currency of the country of which the claim- ants are nationals or in any freely convertible currency accepted by the claimants.
Article 7
Nationals of the one Contracting Party who suffer losses in respect of their investments in the territory of the other Contracting Party owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which that Contracting Party accords to its own nationals or to nationals of any third State, whichever is more favourable to the nationals concerned.
Article 8
If the investments of a national of the one Contracting Party are insured against non-commercial risks or otherwise give rise to payment of indemnification in respect of such investments under a system estab- lished by law, regulation or government contract, any subrogation of the insurer or re-insurer or Agency designated by the one Contracting Party
to the rights of the said national pursuant to the terms of such insurance or under any other indemnity given shall be recognised by the other Contracting Party.
Article 9
Each Contracting Party hereby consents to submit any legal dispute arising between that Contracting Party and a national of the other Con- tracting Party concerning an investment of that national in the territory of the former Contracting Party to the International Centre for Settle- ment of Investment Disputes for settlement by conciliation or arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington on 18 March 1965, in the event that both Contracting Parties have become Contracting States to the said Convention. In case a Contract- ing Party is not a Contracting State to the said Convention, the disputes referred to above shall be submitted to the International Centre for Set- tlement of Investment Disputes under the Rules Governing the Addi- tional Facility for the Administration of Proceedings by the Secretariat of the Centre (Additional Facility Rules). A legal person which is a national of one Contracting Party and which before such a dispute arises is controlled by nationals of the other Contracting Party shall, in accord- ance with Article 25 (2) (b) of the Convention, for the purpose of the Convention be treated as a national of the other Contracting Party.
Article 10
The provisions of this Agreement shall, from the date of entry into force thereof, also apply to investments which have been made before that date.
Article 11
Either Contracting Party may propose to the other Party that consul- tations be held on any matter concerning the interpretation or applica- tion of the Agreement. The other Party shall accord sympathetic consi- deration to the proposal and shall afford adequate opportunity for such consultations.
Article 12
1. Any dispute between the Contracting Parties concerning the inter- pretation or application of the present Agreement, which cannot be set- tled within a reasonable lapse of time by means of diplomatic negotia- tions, shall, unless the Parties have otherwise agreed, be submitted, at the request of either Party, to an arbitral tribunal, composed of three members. Each Party shall appoint one arbitrator and the two arbitrators
thus appointed shall together appoint a third arbitrator as their chairman who is not a national of either Party.
2. If one of the Parties fails to appoint its arbitrator and has not pro- ceeded to do so within two months after an invitation from the other Party to make such appointment, the latter Party may invite the Presi- dent of the International Court of Justice to make the necessary appoint- ment.
3. If the two arbitrators are unable to reach agreement, in the two months following their appointment, on the choice of the third arbitra- tor, either Party may invite the President of the International Court of Justice to make the necessary appointment.
4. If, in the cases provided for in the paragraphs (2) and (3) of this Article, the President of the International Court of Justice is prevented from discharging the said function or is a national of either Contracting Party, the Vice-President shall be invited to make the necessary appoint- ments. If the Vice-President is prevented from discharging the said func- tion or is a national of either Party the most senior member of the Court available who is not a national of either Party shall be invited to make the necessary appointments.
5. The tribunal shall decide on the basis of respect for the law. Before the tribunal decides, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably. The foregoing provisions shall not prejudice settlement of the dispute ex aequo et xxxx if the Par- ties so agree.
6. Unless the Parties decide otherwise, the tribunal shall determine its own procedure.
7. The tribunal shall reach its decision by a majority of votes. Such decision shall be final and binding on the Parties.
Article 13
As regards the Kingdom of the Netherlands, the present Agreement shall apply to the part of the Kingdom in Europe, to the Netherlands Antilles and to Aruba, unless the notification provided for in Article 14, paragraph (1), provides otherwise.
Article 14
1. The present Agreement shall enter into force on the first day of the second month following the date on which the Contracting Parties have notified each other in writing that their constitutionally required proce- dures have been complied with, and shall remain in force for a period of fifteen years.
2. Unless notice of termination has been given by either Contracting Party at least six months before the date of the expiry of its validity, the present Agreement shall be extended tacitly for periods of ten years, whereby each Contracting Party reserves the right to terminate the Agreement upon notice of at least six months before the date of expiry of the current period of validity.
3. In respect of investments made before the date of the termination of the present Agreement, the foregoing Articles shall continue to be effective for a further period of fifteen years from that date.
4. Subject to the period mentioned in paragraph (2) of this Article, the Kingdom of the Netherlands shall be entitled to terminate the applica- tion of the present Agreement separately in respect of any of the parts of the Kingdom.
IN WITNESS WHEREOF, the undersigned representatives, duly authorised thereto, have signed the present Agreement.
DONE in two originals at Windhoek, on 26 November 2002, in the English language.
For the Kingdom of the Netherlands
(sd.) W. M. C. AALMANS
W. M. C. Aalmans Head of Mission Royal Netherlands Embassy Windhoek
For the Republic of Namibia
(sd.) NANGOLO XXXXXX
Xxxxxxx Xxxxxx Minister of Finance NAMIBIA
Protocol
On signing the Agreement on encouragement and reciprocal protec- tion of investments between the Kingdom of the Netherlands and the Republic of Namibia, the undersigned plenipotentiaries have, in addi- tion, agreed on the following provisions which shall be regarded as an integral part of the said Agreement.
Ad Article 3, paragraph 2
The Republic of Namibia may take legal measures reserving limited categories of business for nationals of Namibia for the purpose of pro- moting small and medium-sized enterprises only, provided that these measures do not affect investments made by nationals of the Kingdom of the Netherlands in the Republic of Namibia. With respect to these measures the Republic of Namibia shall accord to the nationals of the Kingdom of the Netherlands treatment not less favourable than that accorded to the nationals of any third State.
Ad Article 5
a) In case of serious balance of payments difficulties the Republic of Namibia may limit temporarily, for a maximum period of twelve months, the free transfer of capital pursuant to Article 5 g) only. These restric- tions shall be imposed on an equitable, non-discriminatory and good faith basis. In case of such a delay in transfer, the investor shall be paid interest at a normal commercial rate on the amount concerned, from the day the transfer should have taken place until the day on which the trans- fer actually took place.
b) The Republic of Namibia may set conditions for the repayment of loans in the form of advance approval of the maturity structure by the Bank of Namibia or another competent authority. It is agreed upon that such approval will not be applied in an unreasonable manner and shall not delay the transfer of these loans.
c) The Contracting Parties record their understanding that with re- spect to the Republic of Namibia having admitted an investment, a natu- ral person referred to in Article 5, paragraph f), shall mean a natural per- son not being a national of the Republic of Namibia.
IN WITNESS WHEREOF, the undersigned representatives, duly authorised thereto, have signed the present Protocol.
DONE in two originals at Windhoek, on 26 November 2002, in the English language.
For the Kingdom of the Netherlands
(sd.) W. M. C. AALMANS
W. M. C. Aalmans Head of Mission Royal Netherlands Embassy Windhoek
For the Republic of Namibia
(sd.) NANGOLO XXXXXX
Xxxxxxx Xxxxxx Minister of Finance NAMIBIA
D. PARLEMENT
Het Verdrag behoeft ingevolge artikel 91 van de Grondwet de goed- keuring van de Staten-Generaal, alvorens het Koninkrijk aan het Verdrag xxx xxxxxx gebonden.
G. INWERKINGTREDING
De bepalingen van het Verdrag zullen ingevolge artikel 14, eerste lid, in xxxxxxx xxxxxx op de eerste dag van de tweede maand volgend op de datum waarop de Verdragsluitende Partijen elkaar er schriftelijk van in kennis hebben gesteld dat aan hun vereiste grondwettelijke procedures is voldaan.
J. GEGEVENS
Verwijzingen
Titel : Statuut van het Internationaal Gerechtshof; San Francisco, 26 juni 1945
Tekst : Trb. 1971, 55 (Xxxxxx, Xxxxx en vertaling)
Trb. 1987, 114 (herziene vertaling)
Laatste Trb. : Trb. 1997, 106
Titel : Verdrag inzake de beslechting van geschillen met betrekking tot investeringen tussen Staten en xxxxx- xxxxx van andere Staten;
Washington, 18 maart 1965
Tekst : Trb. 1966, 152 (Xxxxxx, Xxxxx en vertaling) Laatste Trb. : Trb. 1994, 126
Internationaal Centrum voor de Beslechting van Investeringsgeschillen (ICSID) : Zie het Verdrag van 18 maart 1965
Uitgegeven de vierentwintigste januari 2003.
De Minister van Buitenlandse Xxxxx,
X. X. DE HOOP XXXXXXXX
TRB3030
ISSN 0920 - 2218
Sdu Uitgevers
’s-Gravenhage 2003